A Constitutional Land Grab – The UK Supreme Court and Prorogation

In its judgment in two cases relating to the prorogation of Parliament, in which it struck down the prorogation order issued by the Queen on the advice of the Prime Minister, the UK Supreme Court made what Lord Sumption has rightly called a ‘revolutionary’ move, placing itself squarely in the middle of territory previously regarded as exclusively political. This is an unwelcome constitutional development with long-term negative consequences, and is unsupported by any of the legal analysis on which the Court attempts to rely.

Two common features of a constitutional crisis – there should be no doubt that this is what the UK is currently experiencing – are now fully in evidence.

The first is the tendency of small events to have large effects beyond their original scope or purpose. The Fixed-term Parliaments Act 2011 had the pragmatic aim of binding the Conservatives and Liberal Democrats into a full five-year term of coalition government (2010-2015). Its function was to make clear to both parties that neither could bail out in mid-term as soon as they sensed a politically advantageous moment to force an election.

The political need for this was exhausted by the coalition coming to the end of its natural life, and the Conservatives proposed in their 2017 Manifesto to repeal the Act. However, failing to win a majority in that year’s election, they could not carry it through. So the Act remains on the statute book, where it now stands as one of the most consequential pieces of constitutional legislation in recent times. By depriving the Prime Minister of the traditional power to call an election at a time of his choosing, it is major contributor to the current sclerotic state of Westminster politics.

The second feature is that constitutional actors seek to take advantage of the prevailing disruption of established norms in order to arrogate power either to themselves or their institutions, so redrawing the boundaries of constitutional authority in their own favour. The UK constitution, with its significant unwritten elements – the maintenance of which relies heavily on conventions of moderation in behaviour – offers fertile territory for this kind of constitutional land grab. The Speaker of the House of Commons has previously ripped up the rule book which constrained him (see here). And now the Supreme Court has chosen to do the same.

The opportunity for the Court arose in the combined cases of Miller v The Prime Minister and Cherry v Advocate General for Scotland (together Miller No. 2, to distinguish the case from earlier litigation by the same claimant). The Court’s judgment is one of the most significant and controversial in its brief history.

The controversy is well-justified, because the Supreme Court has overreached itself. Viewed as a constitutional intervention, the substance and effect of Miller No. 2 is that the Court has taken occupation of territory formerly regarded as lying exclusively within the sphere of politics, and done so without even the virtue of being transparent as to its intent or that outcome. Viewed purely on a legal-analytical basis, the judgment fails on its own terms.

It is, in short, a poor judgment. And it will have important, and negative, implications for the future both of the Supreme Court itself and the UK constitution more generally.

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Anarchy in the UK

In the case of Buick, the Northern Ireland High Court explored whether government departments can continue to operate as normal in the absence of ministers due to the collapse of the devolved administration in Belfast. It reached a striking conclusion which, if upheld on appeal, would have significant constitutional and practical implications. It was mistaken.

The United Kingdom is currently engaged in an experiment in political anarchism. For over a year, it has been exploring what happens when one part of the country, in this case Northern Ireland, is required to carry on without an elected government.

The experiment arose inadvertently, and on the surface very little has changed. Belfast 2018 is not the anarcho-syndicalist utopia of Barcelona 1936, nor has it suddenly lapsed into a Hobbesian state of nature. But the very reason why hardly anything appears to be different – the continuity that is provided by the de facto technocratic government of the Northern Ireland Civil Service – gives rise to constitutional questions of real importance. The most fundamental question is this: can day-to-day government be carried on by civil servants without the need for direction or control by politicians; if so, subject to what conditions and within what parameters?

It was only a matter of time before this question fell to be considered in a court of law. And it has been, in the recent case of Buick [2018] NIQB 43, in which the High Court was asked to determine whether Northern Ireland’s ten government departments are able to carry on without ministers in charge. It came to a surprising and unintentionally radical conclusion.

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Why the Crown (sometimes) still matters

In R (Black) v Secretary of State for Justice, the Supreme Court was required to consider when Acts of Parliament are binding on the Crown. It found that the existing law was inconsistent and unsatisfactory. It then made things worse.

The UK Supreme Court’s year in 2017 was framed by two constitutional cases rooted in the medieval history of the British monarchy.

At the beginning of the year, in R (Miller) v Secretary of State for Exiting the EU, the court was concerned with what remains, in the early Twenty-First Century, of the scope of the royal prerogative. And at the year’s end, in R (Black) v Secretary of State for Justice, it had to consider the circumstances in which a contemporary Act of Parliament is binding on the Crown.

The first of these cases, which was related to the legal mechanism for delivering Brexit, achieved wide publicity. The second did not. But the judgment in Black is revealing as to the state of the UK constitution as it enters 2018, and of practical application in a wide range of cases. It tells us something about why the Crown still matters in UK law.

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National Aids Trust v NHS England – Public Health and the Interpretation of Statute

The Court of Appeal judgment in R (National Aids Trust) v NHS England is concerned with the allocation of responsibility for funding certain types of HIV treatment on the NHS.

At its narrowest, the case addresses the specific (though important) question of whether the power to fund prophylactic medicine for HIV lies with local authorities or with the NHS Commissioning Board (NHS England).

More generally, it serves as an unflattering critique of the legislation which underpins the allocation of roles and responsibilities within the health service.

And, at its widest, it adds usefully to the case law on how to understand the vires of a public authority when it lies within a badly-drafted, and hard to interpret, statutory regime.

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Can a Public Body Challenge its own Delegate?

A single interesting point of law emerges from the High Court judgment in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v St George’s Hospital Managers, summarised by the judge, Mr Justice Cranston, as concerning ‘the capacity of a body to seek judicial review of a decision which it could have made itself‘.

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Understanding Parliamentary Purpose – Rights of Women, Statutory Interpretation and the Constitution

Civil legal aid is now available in such a limited category of cases that most practising lawyers will rarely (if ever) encounter it. So there is a risk that the interesting constitutional issue at the heart of the recent judgment in Rights of Women v The Lord Chancellor will fail to get the recognition it deserves.

In that case, the Court of Appeal declared unlawful a set of regulations that would have significantly limited the ability of victims of domestic violence to obtain legal aid. This briefly made the news headlines, before being displaced by the even bigger legal story of the same day, the Supreme Court’s conclusion (in Jogee) that the courts had been misapplying the law on criminal joint enterprise for the past thirty years.

However, aside from the importance of its impact in domestic abuse cases, Rights of Women is worth a second look because of its wider interest to anyone involved in making, relying on, or seeking to challenge delegated legislation.

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Four Short Points on Interpretation

The rules of interpretation in public law, though apparently of little interest to academic lawyers, and never taught in law schools, are fundamental to the day-to-day work of anyone practising in the area.

This is not only because most public authorities operate within a statutory framework which must be properly understood if they are to act intra vires, but because they themselves generate huge volumes of written documents – orders, directions, regulations, consents, licences, authorisations, policies, approvals, determinations, guidance (and so on) – all of which fall to be interpreted within a public law context.

Because public law is, as Martin Loughlin of the LSE observes, ‘an autonomous discipline with its own distinctive methods and tasks’, its principles of interpretation differ in important respects from those applying to private law documents. In two cases decided on the same day, the Supreme Court has emphasised four important elements of these principles.

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